Criminal Justice Bill

HL Deb 05 November 2003 vol 654 cc880-910

8.37 p.m.

Further consideration of amendments on Report resumed.

Clause 168 [Further provisions relating to intermittent custody]:

Lord Bassam of Brighton moved Amendment No. 218A: Page 100, line 18, at end insert— ( ) In section 23 of the Criminal Justice Act 1961 (c. 39) (prison rules), in subsection (3) for "The days" there is substituted "Subject to subsection (3A), the days" and after subsection (3) there is inserted— (3A) In relation to a prisoner to whom an intermittent custody order under section 165 of the Criminal Justice Act 2003 relates, the only days to which subsection (3) applies are Christmas Day, Good Friday and any day which under the Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales."

The noble Lord said: My Lords, in moving Amendment No. 218A, I shall speak also to Amendments Nos. 220E, 220F, 220H and 220J. This is a series of what are essentially technical amendments. Amendment No. 218A excludes intermittent custody officers from the provisions of the Criminal Justice Act 1961 which prevent prisoners from being kept in at weekends if they are due to be discharged on a Saturday or a Sunday. The other four amendments in this group substitute references to a prisoner serving a sentence of intermittent custody with "an intermittent custody prisoner", a new definition that was introduced in Committee. I beg to move.

On Question, amendment agreed to.

Schedule 11 [Breach or amendment of suspended sentence order, and effect of further conviction]:

Lord Bassam of Brighton moved Amendment No. 218B: Page 260, line 30, leave out "requirements of the community" and insert "community requirements of the suspended sentence

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 218C: Page 260, line 36, after second "the" insert "community

The noble Baroness said: My Lords, this amendment was spoken to with Amendment No. 209A. I beg to move.

Lord Dholakia

My Lords, I am not quite clear on the explanation of the need to insert the word "community" here. Would the Minister explain that?

Baroness Scotland of Asthal

My Lords, Amendment No. 218C, to which the noble Lord refers, is a drafting correction. That is its sole purpose. I do not know whether the noble Lord requires further explanation.

Lord Dholakia

My Lords, I was confused because the amendment seeks to insert the word "community". The noble Lord, Lord Bassam, did not explain it when he spoke to the other amendments in the group and I wondered what was its implication. If it is simply a drafting amendment, I have no problem.

Baroness Scotland of Asthal

My Lords, it is a drafting amendment. I shall certainly undertake to look more carefully and if that is not correct I shall come back to it. I believe that these are all technical amendments.

On Question, amendment agreed to.

Clause 189 [Mental health treatment requirement]:

Baroness Walmsley moved Amendment No. 218CA: Page 111, line 1, after "periods)" insert "or under the direction of a specified person having the necessary qualifications or experience

The noble Baroness said: My Lords;, in moving Amendment No. 218CA, I shall speak also to the other amendments in this group.

The amendments were originally tabled in Committee by the noble Lord, Lord Adebowale, who, because of some confusion about timing, was unable to move them at that time. I have brought them forward today with the support of the noble Lord, Lord Adebowale, who is unavoidably detained by the very important work that he does at Turning Point.

The Government's intention is to widen the range of those receiving treatment as part of a community sentence. The proposed new single generic community sentence should enable people with less severe misuse and less serious patterns of offending to benefit from treatment. It will also allow courts to introduce the mental health treatment required as part of a community sentence for the first time.

Perhaps I may speak first to Amendments Nos. 218CA, 218CB and 218CD to 218CG. The new requirement will allow the court to direct an offender to undergo mental health treatment for certain periods. Treatment may be provided in an independent hospital or care home, a hospital or as a non-resident patient at a place specified in the order. The noble Lord, Lord Adebowale, and I, and his organisation, are concerned that treatment envisaged under the mental health requirement will be carried out only under the direction of a registered practitioner or chartered psychologist.

It is important that staff from voluntary agencies work alongside psychiatrists and psychologists. The clause does not recognise the role of the voluntary sector in delivering effective interventions, despite the fact that the sector delivers around 10 per cent of the Government's spend on mental health services. Indeed, in the health field in general, it has been acknowledged that the potential rewards of the NHS-voluntary sector partnerships are very considerable. The sector provides local, community-based, flexible and responsive services, often with strong user and carer involvement. This helps to reduce relapse, prevent crises from escalating and promote recovery.

Turning Point's experience is that staff often do not have the opportunity to contribute to a multi-disciplinary team and there is a risk that the clause will compound the problem within the criminal justice system. Indeed, staff from the voluntary sector are often better placed to see how other factors over and above a medical response may be impacting on and contributing to, or even exacerbating, a person's mental health. Lack of housing or stable relationships, unemployment or poverty are all crucial factors. These are understandably outside the remit of the psychiatrist, whose role is more clinical. Yet successful interventions will be dependent on a multi-disciplinary approach, which I know the Government are keen on.

This group of amendments would ensure that the provision for the mental requirement is put on a par with the drug rehabilitation requirement, which allows for a suitably qualified or experienced individual, such as a drug agency, to supervise the treatment.

We should not lose sight of the fact that a mental health requirement may be combined with another order, such as a drug rehab requirement or an alcohol rehab requirement. It will often need the involvement and engagement of the voluntary sector to ensure that someone's broad needs are met. That is why we have put down this group of amendments.

I will speak briefly to Amendment No. 218CC. I know that the debate on "may" and "shall" can unduly exercise the minds of noble Lords. However, the word "shall" creates a greater obligation on the court— namely, that the magistrate will not be able to impose a mental health requirement unless he or she is satisfied that the necessary arrangements are put in place. The Crime and Disorder Act 1998, which introduced the concept of drug testing and treatment orders, uses "shall". If the Minister is not inclined to accept this amendment, I would be grateful if she could explain the merits of "may" over "shall" in this respect and the rationale for departing from the terminology used in the 1998 Act. I beg to move.

8.45 p.m.

Lord Bassam of Brighton

My Lords, this is an interesting group of amendments. I am sad that the noble Lord, Lord Adebowale, is not here to add to the points which have been made by the noble Baroness in her customary very attentive and considered approach.

Amendments Nos. 218CA, 218CB, 218CD, 218CF and 218CG seek, as we understand it, to expand the definition of persons under whose treatment or direction offenders undergo mental health treatment as part of a community order or suspended sentence order. As drafted, these persons have to be registered medical practitioners or chartered psychologists. In the drug treatment provisions, treatment can be carried out by a specified person having the necessary qualifications or experience.

Drug treatment is very different from mental health treatment. While mental health treatment is essentially clinical, drug treatment may be much broader in scope. Drug treatment may, and currently does, under the drug testing and treatment order include clinical treatments such as substance substitution, but may also include interventions to address offending behaviour and to change an offender's lifestyle. It is likely to involve counselling and group work as well as the provision of education and training opportunities, all of which are designed to develop skills to reinforce and sustain rehabilitation and assist those who are going through rehabilitation programmes to work in the wider world.

There may be non-clinical elements in a mental health requirement and there is scope for voluntary sector involvement in the delivery of this, provided that it is under the direction of a registered medical practitioner or a chartered psychologist. There may also be other interventions that fall short of treatment, such as counselling or education on mental health matters. They may be delivered by the voluntary sector under other requirements of the community order.

Amendment No. 218C concerns the circumstances under which an offender can be given a mental health treatment requirement. As drafted, the court may not include such a requirement unless it is satisfied that certain conditions have been fulfilled. It must be satisfied that the offender's mental condition requires, and may be susceptible to, treatment, that suitable arrangements can be made for treatment, and that the offender has expressed his willingness to comply.

The amendment would change "may not" to "shall not", presumably in order—and the noble Baroness might help us here if we are wrong—to emphasise that the conditions must all be fulfilled before a mental health treatment can be imposed. The amendment is unnecessary, as it does not bring anything new or any further elucidation to the operation of the clause. As currently drafted, Clause 189(3) already ensures that the stated conditions are fulfilled before a court may impose a mental health treatment requirement.

In considering the clause, the noble Baroness asked particularly why "shall" had been changed to "may" from an earlier drafting. We re-enacted the clause from the 2000 police courts legislation, and did not think that we had changed any wording.

Baroness Walmsley

My Lords, perhaps it might help the Minister if I clarified my question. I said that the Crime and Disorder Act 1998, which introduced the concept of drug testing, used the terminology "shall". I wondered why the Government had decided to move from that—perhaps to the 2000 legislation.

Lord Bassam of Brighton

My Lords, I believe that it is because we were drawing our drafting from a different piece of legislation. Because the noble Baroness has raised the question in my mind and in the minds of other noble Lords, we shall go back and check that point and discuss it. I am grateful to the noble Baroness for drawing that out, as there may be some confusion on everyone's part, not least on our own.

Clause 189(4) provides that when an offender is under residential treatment the responsible officer shall carry out supervision, to such extent only as may be necessary for the purpose of the revocation or amendment of the order". Amendment No. 218CE would include the treatment provider in the provision, but that is a misunderstanding of the purpose of the provision, which exists only to limit the role of the responsible officer in situations in which the offender receives residential mental health treatment. The treatment provider provides treatment—fairly obviously—but does not have the duties of the responsible officer.

I hope that those explanations have satisfied the concerns expressed by the noble Baroness. I hope that having heard my remarks—although not entirely convincing on the subject of "may" to "shall"—the noble Baroness will withdraw her amendment.

Baroness Walmsley

My Lords, I am grateful to the Minister for his explanation and confirmation that voluntary organisations will be able to play a full role in the services. That is very important. I am also grateful for his attempt at explaining Amendment No. 218CC. I am sure that when he has checked the matter, he will come back to me if there is any doubt about the situation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 218CB to 218CE not moved.]

Clause 190 [Mental health treatment at place other than that specified in order]:

[Amendments Nos. 218CFand 218CG not moved.]

Clause 191 [Drug rehabilitation requirement]:

Baroness Walmsley moved Amendment No. 218CH: Page 112, line 30, leave out "by the responsible officer

The noble Baroness said: My Lords, in speaking to the amendment, I shall speak to the rest of the amendments in the group. The amendments fall into a number of categories, but I shall deal first with Amendments Nos. 218CH and 218CK. The amendments are also supported by the noble Lord, Lord Adebowale, who is not able to be with us today.

Testing is regarded as a means of reinforcing the authority of a community sentence and to provide a more accurate indicator of offenders' drug use. It acts as a deterrent to continued drug use and as an incentive to become and remain drug free. We strongly feel that testing must be integrated fully with treatment programmes and that testing regimes are tailored for individual offenders.

Amendments Nos. 218CH and 218CK are intended to ensure that the treatment provider, not the probation officer, is responsible for determining the times and circumstances governing testing and treatment, and should be expected to communicate the results to the probation officer. That provision was in Section 62(4) of the Crime and Disorder Act 1998.

Multi-agency working is perhaps the biggest challenge faced by the DTTO scheme. DTTOs require professionals to work together in a co-ordinated way. Developing effective inter-agency protocols for the operation of the scheme is essential. The energy invested in that at the developmental stage will pay dividends in the longer term with respect to the operation and management of the orders.

We are concerned that allowing probation officers to determine the times and circumstances of testing will blur the professional parameters between probation officers and drug agencies. We must be clearer about the divisions of labour between the two teams. Requiring probation staff to assume competence in medical decisions is an inefficient use of resources. Probation staff should be responsible for the overall accountability of the DTTO and reporting back to the criminal justice system and treatment providers responsible for providing the treatment. That is what the amendments would achieve.

I now turn to Amendments Nos. 218CL, 218CJ, 218CM and 218N. To take Amendments Nos. 218CJ, 218CM and 218N first, we return to the issue of "may" and '"shall". They would strengthen the provision for drug rehabilitation by the use of "shall" rather than "may".

Amendment No. 198CL expresses our concern that the court will have discretion whether to include a mandatory court review for those sentences for fewer than 12 months. The amendment would remove that discretion. We strongly believe that the court hearing should be mandatory and retained for all who receive a community sentence because research has consistently shown that individuals respond well to direct dialogue between magistrate and offenders, with the magistrate showing a real and active interest in a person's progress. The offender's confidence in the programme thereby increases.

That is especially important for shorter sentences, when every encouragement is needed to ensure that early criminal justice interventions really work, can successfully reduce patterns of offending and can encourage the person to develop a drug-free lifestyle. Put simply, we also want to make sure that the offender does not feel that he is 'getting away with it' by avoiding a court review hearing.

Of course, magistrates are not there simply to expedite orders and to get as many people as possible through the system; magistrates themselves do not believe that. They must be encouraged to take the time to understand the complexity of drug use and the importance of treatment as well as punishment. The court hearing will ensure that magistrates are more committed to making community sentences work and deliver positive outcomes. I think we all agree that that is what we want to achieve. That also ensures that the accountability of the offender through review is clearly understood. That is crucial for all sentences and there should be no distinction between sentences of 12 months or fewer and longer sentences.

There is much to learn from the American experience in which community courts such as Red Hook allow the courtroom to take centre stage and provide a base for criminal justice and social services, so that offenders have quick and easy access to drug treatment, training and mediation services. The lesson of the Red Hook community court is that people must feel connected to a criminal justice system that works not only for the victim but also for the defendant drug user. Both must have confidence that the system is there to make it work. The more people involved in the solution, the greater the success.

Turning to alcohol treatment, Amendment No. 218CP would add a maximum of three years to the minimum of six months provided for in the Bill and Amendment No. 218CQ would insert a new clause. Much of the criticism of the old approach to the DTTOs—as, indeed, of treatment in the community— was that interventions were delivered in a rigid, problem-specific manner and did not recognise that it is wrong to label people as having one problem when they usually have many.

Put simply, it is common for a drug-dependent user to have accompanying mental health needs or a problem with alcohol misuse as well. Until now, poly-drug use or secondary drug use has not been easily addressed in the DTTO system.

Secondly, in non-inner city areas the DTTO focus on class A drugs has not been helpful. In rural areas, people may have a main problem with a class C drug, but the DTTO addresses only their class A use. For example, in the rural North East of the country, crack use is almost non-existent. The combined use of heroin and benzodiazepine is more common, but it is difficult to address benzodiazepine use in the DTTO since heroin use reduction is likely to be the target for success. Even if heroin use is stopped or reduced, the combined use of alcohol and Temazepam together can be very dangerous and lead to violent behaviour which can cause other kinds of offending. However, as neither of those are class A drugs and one is legal and the other is not, tackling their use has not been seen as a priority.

Turning Point has campaigned for the problems of alcohol to be addressed. Alcohol is very frequently used when users are off opiates. However, although alcohol is legal, it is still an extremely dangerous drug, especially when combined with other drugs such as benzodiazepine. The new proposed single generic community sentence should enable people with less severe misuse and less serious patterns of offending to benefit from treatment. I am quite sure that that is one of the Government's objectives. It will also allow courts to introduce an alcohol treatment requirement and mental health treatment requirement as part of the community sentence for the first time. That is really welcome news, but only if matched by new resources to deliver more alcohol treatment.

A Turning Point report showed that more than half of users said that they had a mental health problem in addition to their alcohol dependency, and yet we know that people's needs often fall between mental health and alcohol services because of disagreements on who should be the lead agency or because both agencies are not involved at the stage when that person is assessed and referred to services. We know that some areas do not take people with mental illness because those clients are assessed as not being able to cope with the available treatment such as group work and cognitive therapy. Clearly, the onus should be on providers to develop suitable programmes. We have great fears that those problems will be compounded within the criminal justice system unless notice is taken of this problem.

Therefore, this amendment places a requirement on the Secretary of State to produce guidance on how the different requirements will relate to one another. That should explain how drug agencies, mental health services and alcohol services should adopt an integrated, shared and caring approach to meeting people's complex needs. It should spell out how services should be co-ordinated across requirements and how to link with the specialist support and advice from the voluntary sector. I beg to move.

9 p.m.

Lord Hylton

My Lords, I welcome this group of amendments. It is excellent that the Bill, in Clause 191, at the top of page 113, enshrines the voluntary principle in drug rehabilitation because that will make any treatment on offer far more effective. I also welcome Amendment No. 218CP, tabled by the noble Baroness, Lady Walmsley, which would increase the time during which rehabilitation treatment can take effect. That seems to allow for the possibility, which quite often occurs, of relapses and second efforts and so on. Finally, Amendment No. 218CQ is very important as regards the interrelationship between services and kinds of treatment.

The Lord Bishop of Hereford

My Lords, I wish to speak briefly to this group of amendments, which contains a variety of points. I hope that I can help the Minister over "may" and "shall". This is really only a semantic matter concerning the use of the English language. Notwithstanding whatever precedent may have existed in other legislation, if you think of the question, "May I hit that old lady over the head?", the response, "No, you may not", is a definite prohibition. It does not allow for any kind of doubt whether or not that is a permissible act. The phrase, "You may not do it" is definite. I do not object to the use of "may" in the various contexts that we are discussing.

I do not want to speak about the responsible officer but I want to say a little about the alcohol treatment requirement into which we are moving. It is very welcome indeed that that has found a place within this legislation. It is a desperate and urgent need that has been far too little addressed in the past. However, I am not sure about the amendment containing the words, not more than three years". The noble Lord, Lord Hylton, seemed to suggest that that was a permissive extension from the six months, which of course it is, but it seems to me unnecessary that it should be limited. Clearly, there is an enormous history of relapse in alcoholism. It is a desperately persistent condition. If anyone has ever been to an Alcoholics Anonymous meeting, they will know that every member at the meeting introduces himself or herself by saying, "My name is such and such, and I am an alcoholic" because people recognise that such people are never cured of alcoholism. It goes on for ever. To put a limit even of three years on the treatment is neither necessary nor desirable. I resist the relevant amendment. However, I very much welcome the provisions of Clause 194.

Baroness Scotland of Asthal

My Lords, I thank the right reverend Prelate for his welcome of Clause 194.I also thank the noble Lord, Lord Hylton, for his welcome of the measures. I am sure that the noble Baroness, Lady Walmsley, implicitly welcomes the Bill's provisions although she wishes to modify them. Noble Lords are right to say that we have waited a long time for these measures. It gives the Government a great deal of pleasure to introduce these provisions to assist those who suffer so gravely. I endorse what the right reverend Prelate said in relation to alcoholism. I believe that sufferers usually say, "I am an alcoholic and I have not imbibed for X number of years"—quite often 30 or more. Alcoholism is a pernicious and persistent condition.

We are now dealing with the drug rehabilitation treatment clause—the last group in relation to mental health. We have looked at the previous provisions under the Powers of Criminal Courts (Sentencing) Act. The relevant provisions are identical to those of that Act. We did not change the drafting. Any inconsistency that the noble Baroness detects may arise not from the nature of these provisions but from the legislation she was looking at. It is a different piece of legislation with different roots. We cannot find any inconsistency at this stage but I shall confirm that when we reconsider the matter at greater leisure.

Amendment No. 218CJ seeks to change "may not" to "shall not", to emphasise that the conditions listed in Clause 191(2) must all be fulfilled before a drug treatment requirement can be imposed. The conditions state that the court must not impose a requirement unless it is satisfied that the offender is dependent on, or has a propensity to misuse, drugs; that, his dependency or propensity requires and may be susceptible to treatment; that arrangements for treatment have or can be made; that a probation officer or youth offending team member has recommended the treatment; and that the offender is willing to comply with it. This amendment does not bring anything new to the operation of the clause.

As currently drafted, Clause 191(2) already ensures that the stated conditions are fulfilled before a court may impose a drug treatment requirement. Currently, under the drug treatment and testing order, it is the treatment provider who determines how and in what circumstances the offender is required to give samples for testing in accordance with the provisions of the order and guidance issued by the Secretary of State.

In giving directions as to how testing is done, the treatment provider can either do the test himself or delegate the task to others. The clause, as drafted, extends these powers to the responsible officer in order to achieve maximum flexibility and efficiency in determining the arrangements for drug testing. The test itself does not require specialist skills, although training is given on the use of equipment. Restricting the powers to specialists can make it difficult to arrange drug tests, as they are not always; on probation premises. There are safeguards, as arrangements are subject to the provisions of the order and guidance issued by the Secretary of State.

We do not suggest that the analytical process be undertaken by anyone who is not skilled to do that. However, as the noble Baroness may know, the taking of the test itself can be relatively easily done by someone of modest skill who is trained how to do it. We want to be able to give people that opportunity. People in Turning Point, for instance, regularly have to try to do it to assist people on the ground. We do not want to do anything that would disable people from helping in that very helpful and proper way. Amendment No. 218CH would thwart that policy change and be unnecessarily restrictive. We understand the noble Baroness's concerns, but we do not think that they have any foundation in fact.

Amendments Nos. 218CK and 218CP seek to limit the length of the drug treatment and testing period and alcohol treatment to three years, as has been alluded to by the right reverend Prelate. That is again not necessary, as they can be imposed only as part of a community order or a suspended sentence order. Community orders cannot last longer than three years, as provided in Clause 159(5), and suspended sentences orders cannot last longer than two years, as provided in Clause 171(3). That safeguard is already there, but it does not detract from what the right reverend Prelate said: that the measures could be extended on a voluntary or other basis.

Amendment No. 218CL would make all drug rehabilitation requirements subject to court review, rather than making that discretionary where the requirement is imposed for less than 12 months. Currently, DTTOs provide intensive drug treatment and testing, along with court reviews to monitor the offender's progress. The Bill brings the DTTO under the umbrella of the new generic community order, but also provides for a less intensive form of drug treatment which lasts less than 12 months and is not subject to a mandatory court review.

The aim is to provide for offenders whose drug problem is not so serious that it requires intensive treatment. To impose court review in all cases would be unnecessary and time-consuming. It might divert proper attention from those cases that really need intensity to try to make the difference. Nevertheless, the court has the option of imposing a court review for short drug rehabilitation requirements where it is considered appropriate and helpful.

Amendments Nos. 218CM and 218CN change the wording of Clause 193(2)(a) and (b) to emphasise that the court cannot amend a drug treatment requirement unless the offender is willing to comply, and cannot make any amendments to an order which has the effect of reducing the period of treatment below the six-month minimum. As with Amendments Nos. 218CK and 218CP, those changes are unnecessary. That is partly for the reasons that I have already given, but also because the current drafting is adequate in ensuring that the conditions are fulfilled.

The new clause would require the Secretary of State to issue guidance to courts responsible for community orders when deciding to introduce orders that impose two or more treatment requirements. I confess that when I looked at the wording of the draft clause, it appeared somewhat confusing, and it is not clear of what the guidance would consist and what its purpose would be. I was very grateful to the noble Baroness, who elucidated what she meant in her comments.

The probation service already provides advice to sentencers on suitable interventions for each individual offender in the form of a pre-sentence report. That would cover how requirements would fit together where a number are imposed as part of the same order, as well as any other relevant issues of which the court should be aware. In addition, the Sentencing Guidelines Council will issue guidance on sentencing matters for all courts. I believe the noble Baroness will find that, put together, all those issues meet her concerns in a fairly comprehensive way and do what she most wishes to be done. I hope that that explanation is helpful.

I, too, acknowledge that the noble Lord, Lord Adebowale, has been very concerned about this issue. I know that he is not here today. He raised this concern and noble Lords will know that I wrote to him on 4th November setting out our response in relation to mental health requirements, the court review hearing, the guidance on community sentencing, and resourcing and implementation of the alcohol and mental health requirements. He was right to be concerned about those matters. I believe that a copy of the letter has been placed in the Library for those who may not have participated in the debate. It is on the record for the assistance of noble Lords.

I thank the noble Baroness for giving me the opportunity to state clearly, I hope, why we believe that the Bill as currently structured meets all the concerns that she reasonably has about this very difficult and sensitive issue.

9.15 p.m.

Baroness Walmsley

My Lords, I thank the Minister very much for her patience in going through all the amendments in such detail. I believe that much of what she said will give a great deal of comfort to the voluntary sector, to the noble Lord, Lord Adebowale, to myself and to Turning Point.

She will be aware of the difficulty that the noble Lord, Lord Adebowale, had in raising these matters in Committee. We all accept that that would have been a more appropriate stage at which to obtain clarification. However, I believe that the Government Whips are aware of the situation that arose then. Therefore, I thank the Minister for her patience in giving such detailed explanations on Report. We are most grateful to her, and I shall read with great care what she said. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 218CJ and 218CK not moved.]

Clause 192 [Drug rehabilitation requirement: provision for review by court]:

[Amendment No. 218CL not moved.]

Clause 193 [Periodic review of drug rehabilitation requirement]:

[Amendments Nos. 218CM and 218CN not moved.]

Clause 194 [Alcohol treatment requirement]:

[Amendment No. 218CP not moved.]

[Amendment No. 218CQ not moved.]

Clause 198 [Petty sessions area to be specified in relevant order]:

Baroness Scotland of Asthal moved Amendment No. 218CR: Page 117, line 29, leave out "periods" and insert "period".

On Question, amendment agreed to.

Schedule 14 [Specified offences for purposes of Chapter 5 of Part 11]:

Lord Bassam of Brighton moved Amendment No. 218D: Page 278, line 3, at end insert— An offence under Part II of the Channel Tunnel (Security) Order 1994 (S.I. 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).

The noble Lord said: My Lords, this very large group of amendments, which starts with Amendments Nos. 218D to 218H and includes Amendments Nos. 220A to 220C, 220G, 236T, 237A, 238A and 246C, makes minor changes to provisions in the Bill to take account of other Bills going through Parliament.

Amendments Nos. 220G, 238A, 218G, 218H, 220B, 220C, 236T, 237A and 246C all make small changes to provisions in the Bill to take account of the Sexual Offences Bill. Amendment No. 218F makes a small change to Schedule 14 to take account of the Female Genital Mutilation Bill. Amendments Nos. 220A, 218D and 218E make minor drafting improvements. I hope that noble Lords will not test me on all those. However, if they do, I have an explanation for each and I warn them that it will take some time. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendments Nos. 218E to 218H: Page 278, line 11, leave out paragraph 59.

Page 278, line 16, at end insert—

An offence under section 1 of the Female Genital Mutilation Act 2003 (female genital mutilation).

An offence under section 2 of that Act (assisting a girl to mutilate her own genitalia).

An offence under section 3 of that Act (assisting a non-UK person to mutilate overseas a girl's genitalia).

Page 279, line 25, at end insert—

An offence under section 33 of that Act (keeping a brothel).

Page 280, line 6, at end insert—

An offence under section 1 of the Sexual Offences Act 2003 (rape).

An offence under section 2 of that Act (assault by penetration).

An offence under section 3 of that Act (sexual assault).

An offence under section 4 of that Act (causing a person to engage in sexual activity without consent).

An offence under section 5 of that Act (rape of a child under 13).

An offence under section 6 of that Act (assault of a child under 13 by penetration).

An offence under section 7 of that Act (sexual assault of a child under 13).

An offence under section 8 of that Act (causing or inciting a child under 13 to engage in sexual activity).

An offence under section 9 of that Act (sexual activity with a child).

An offence under section 10 of that Act (causing or inciting a child to engage in sexual activity).

An offence under section 11 of that Act (engaging in sexual activity in the presence of a child).

An offence under section 12 of that Act (causing a child to watch a sexual act).

An offence under section 13 of that Act (child sex offences committed by children or young persons).

An offence under section 14 of that Act (arranging or facilitating commission of a child sex offence).

An offence under section 16 of that Act (meeting a child following sexual grooming etc.).

An offence under section 17 of that Act (abuse of position of trust: sexual activity with a child).

An offence under section 18 of that Act (abuse of position of trust: causing or inciting a child to engage in sexual activity).

An offence under section 19 of that Act (abuse of position of trust: sexual activity in the presence of a child).

An offence under section 20 of that Act (abuse of position of trust: causing a child to watch a sexual act).

An offence under section 26 of that Act (sexual activity with a child family member).

An offence under section 27 of that Act (inciting a child family member to engage in sexual activity).

An offence under section 31 of that Act (sexual activity with a person with a mental disorder).

An offence under section 32 of that Act (causing or inciting a person with a mental disorder to engage in sexual activity).

An offence under section 33 of that Act (engaging in sexual activity in the presence of a person with a mental disorder).

An offence under section 34 of that Act (causing a person with a mental disorder to watch a sexual act).

An offence under section 35 of that Act (inducement, threat or deception to procure sexual activity with a person with a mental disorder).

An offence under section 36 of that Act (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception).

An offence under section 37 of that Act (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder).

An offence under section 38 of that Act (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception).

An offence under section 39 of that Act (car; workers: sexual activity with a person with a mental disorder).

An offence under section 40 of that Act (care workers: causing or inciting sexual activity).

An offence under section 41 of that Act (can: workers: sexual activity in the presence of a person with a mental disorder).

An offence under section 42 of that Ac: (care workers: causing a person with a mental disorder to watch a sexual act).

An offence under section 48 of that Act (paying for sexual services of a child).

An offence under section 49 of that Act (causing or inciting child prostitution or pornography).

An offence under section 50 of that Act (controlling a child prostitute or a child involved in pornography).

An offence under section 51 of that Act (arranging or facilitating child prostitution or pornography).

An offence under section 53 of that Act (causing or inciting prostitution for gain).

An offence under section 54 of that Act (controlling prostitution for gain).

An offence under section 57 of that Act (trafficking into the UK for sexual exploitation).

An offence under section 58 of that Act (trafficking within the UK for sexual exploitation).

An offence under section 59 of that Act (trafficking out of the UK for sexual exploitation).

An offence under section 61 of that Act (administering a substance with intent).

An offence under section 62 of that Act (committing an offence with intent to commit a sexual offence).

An offence under section 63 of that Act (trespass with intent to commit a sexual offence).

An offence under section 64 of that Act (sex with an adult relative: penetration).

An offence under section 65 of that Act (sex with an adult relative: consenting to penetration).

An offence under section 67 of that Act (exposure).

An offence under section 68 of that Act (voyeurism).

An offence under section 70 of that Act (intercourse with an animal).

An offence under section 71 of that Act (sexual penetration of a corpse).

On Question, amendments agreed to.

Clause 211 [The assessment of dangerousness]:

Baroness Walmsley moved Amendment No. 219: Page 124, line 1, leave out "may" and insert "must

The noble Baroness said: My Lords, in moving Amendment No. 219 I shall speak also to Amendment No. 220. The purpose of these amendments is to provide additional safeguards for children and young people convicted of sexual and violent offences in relation to the court's assessment of their dangerousness. The amendment would ensure that in deciding whether to impose an indeterminate sentence under Clause 208 or an extended sentence under Clause 210, the court is obliged to take into account all the relevant information available to it and the child's welfare and the capacity for rehabilitation.

The sentences in Clauses 208 and 210 represent a massive leap in the restriction of liberty for children and introduce a mandatory element for a wider range of offences. Children's organisations are concerned that without additional safeguards for children, that will result in more children being locked up and for longer. They mirror the adult provisions in Clauses 207 and 209 and contain insufficient safeguards to ensure that children are not disproportionately detained.

It is hard to see how the new sentences meet the UK's legal obligations under the United Nation's Convention on the Rights of the Child to ensure that custody should be used only as a measure of last resort and for the minimum appropriate period of time. On many occasions in your Lordships' House I have referred to the response of the UN Committee on the Rights of the Child to the UK Government's report on the implementation of the UNCRC. In the response the committee is extremely critical of the UK Government with respect to the youth justice system in England and Wales. It expressed particular concern about the increasing use of custody for children, especially young children, and their treatment in custody.

I could go into great detail about the criticism, but I shall not. In any event, the length of the sanction should be determined by judicial authority and on the basis of an assessment of the individual circumstances in the case. That is not the way in which the Bill has been drafted. I beg to move.

Baroness Anelay of St Johns

My Lords, the House may or may not recall—it seems it does not recall— that I moved similar amendments in Committee and I made the same comments as have been covered so admirably by the noble Baroness, Lady Walmsley. At that stage I listened carefully to the response from the Minister. I considered it further when we had our meeting with her on matters to do with children. I also read e-mails from the Children's Society and on reflection, having considered the Minister's response carefully, I felt that it was not appropriate for me to go further on these matters and I shall accept the assurances of the Minister.

Lord Hylton

My Lords, I invite the Minister to assure the House that the UN Convention on the Rights of the Child has been fully taken into account in the drafting of this part of the Bill.

Baroness Scotland of Asthal

My Lords, I can tell your Lordships and the noble Lord, Lord Hylton, that the Bill complies with all the commitments made by the UK in relation to any convention that we have signed and implemented in relation to children.

Amendments Nos. 219 and 220 would require the courts to take into account additional factors about the offender, including his or her welfare and rehabilitation needs when undertaking the assessment of dangerousness in the case of juveniles. I understand why the noble Baroness pressed these issues upon us on the previous occasion and I know the reasons that she does so again. I am grateful to the noble Baroness, Lady Anelay, for indicating her satisfaction with what the Government said. If I shortly respond to the amendment, I hope that the noble Baroness, Lady Walmsley, will be similarly satisfied.

As I stated in Committee, these amendments are unnecessary because the purpose of the assessment is to establish whether the offender poses, a significant risk to members of the public of serious harm". In order to inform the assessment the court is required to take into account all information available to it about the nature and circumstances of the offence. Additional information about the offender may be taken into account by the court when undertaking the assessment, but it is not considered appropriate to require the court to take such additional information into account as the assessment must hinge upon the risk that the offender poses as opposed to that individual's needs.

We may be entirely sympathetic to the offender and the offender's needs but that does not detract from our need to assess the level of risk that that offender presents for whatever reason, because once the court has identified the nature and quality of the risk and has made an assessment of whether the young offender presents a significant risk of harm to the public, it can then go on to consider, bearing in mind that risk, how best to deal with the offender in all the other circumstances of the case.

The court, to be advantaged in order to make an informed judgment, has to assess that risk. The risk does not involve an assessment of the offender's need because the risk the offender presents to the members of the public is not mitigated by virtue of the fact that the offender may justifiably have had a terrible time, be incapable of controlling emotions, be spontaneously violent, unable to control himself and cannot reasonably be expected to control himself. That does not detract from the risk that that individual may present to unsuspecting people who come across him. There is a separation.

I very much understand and welcome the passion the noble Baroness has for ensuring that the welfare of the child is considered at all material points, but, we would say, not at this particular stage. It is a two-stage process.

While I acknowledge that information about the offender and his welfare and rehabilitation needs may in some circumstances be relevant for a risk assessment such as this, it will not be relevant in all cases. The focus of sentencing in this clause is upon the risk that the offender poses in reoffending and the degree of harm that would be caused by the commission of any further offences. The sentences provided for in this chapter are a response to that.

Therefore, we do not wish to place a requirement upon the court to consider this information when it may not be relevant and its inclusion could undermine the relevance of any risks posed, thus potentially jeopardising the safety of the public. I hope that with that response the noble Baroness will better understand why we have made the distinction.

Baroness Walmsley

My Lords, I thank the Minister for her explanation. It is very clear that we need to separate the welfare of the child from the level of risk to the public. Having accepted and understood her explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 220 not moved]

Lord Bassam of Brighton moved Amendments Nos. 220A to 220C: Page 124, leave out lines 15 to 22 and insert—

1. "(a) a specified offence,
2. (b) an offence specified in Schedule 15 (offences under the law of Scotland), or
3. (c) an offence specified in Schedule 16 (offences under the law of Northern Ireland)."

Page 284, line 13, at end insert—

An offence under section 1 of the Female Genital Mutilation Act 2003 (female genital mutilation).

An offence under section 2 of that Act (assisting a girl to mutilate her own genitalia).

An offence under section 3 of that Act (assisting a non-UK person to mutilate overseas a girl's genitalia).

Page 285, line 36, at end insert—

An offence under section 16 of the Sexual Offences Act 2003 (meeting a child following sexual grooming etc.)

An offence under section 17 of that Act (abuse of position of trust: sexual activity with a child).

An offence under section 18 of that Act (abuse of position of trust: causing or inciting a child to engage in sexual activity).

An offence under section 19 of that Act (abuse of position of trust: sexual activity in the presence of a child).

An offence under section 20 of that Act (abuse of position of trust: causing a child to watch a sexual act).

An offence under section 48 of that Act (paying for sexual services of a child).

An offence under section 49 of that Act (causing or inciting child prostitution or pornography).

An offence under section 50 of that Act (controlling a child prostitute or a child involved in pornography).

An offence under section 51 of that Act (arranging or facilitating child prostitution or pornography).

An offence under section 53 of that Act (causing or inciting prostitution for gain).

An offence under section 54 of that Act (controlling prostitution for gain).

An offence under section 57 of that Act (trafficking into the UK for sexual exploitation).

An offence under section 58 of that Act (trafficking within the UK for sexual exploitation).

An offence under section 59 of that Act (trafficking out of the UK for sexual exploitation).

An offence under section 67 of that Act (exposure).

An offence under section 68 of that Act (voyeurism).

An offence under section 70 of that Act (intercourse with an animal).

An offence under section 71 of that Act (sexual penetration of a corpse).

On Question, amendments agreed to

Clause 221 [The Parole Board]:

9.30 p.m.

Lord Thomas of Gresford moved Amendment No. 220CA: Page 127, line 26, leave out subsections (5) and (6).

The noble Lord said: My Lords, in Committee, on 14th October, I raised the issue of the rules of the Parole Board and indicated that I had been unable to trace them on the Parole Board's own programme. A very interesting and important contribution was made by the noble Viscount, Lord Colville of Culross, who was a member of the Parole Board. He gave us background to the matter when he pointed out that he and his colleagues had written out their own rules, having failed to obtain from the Home Office rules for governing their procedures in the particular area with which we were concerned. He said: We sent them to the Home Office and said, 'This is the best we can do. We will have to train the members of the Parole Board on the basis of these rules because you will not produce any'".— [Official Report, 14/10/03; col. 807.]

He said that, in the end, he received rules that bore a marked similarity to the draft that had been sent to the Home Office. In reply, the noble Lord, Lord Filkin, made the point that it was not his Bill—that was the case—and said: Having made those two general commitments"—

that rules would be made in time and that training would be provided— and, aware that I am—how shall I put it?—speaking on another's Bill, it is better that I put in writing to those Members of the Committee and others any further points on those issues that go to the heart of what they have raised, so that we provide as much clarity as possible before Report".—[Official Report, 14/10/03; col. 808.]

On that basis, he suggested that our amendments were not pressed. In response, I said: We were tempted to press the matter to a Division, but I have heard what the Minister said and await with interest—within the next two weeks—his further response that will make absolutely clear what is the Government's position on the issue".—[Official Report, 14/10/03; col. 809.]

That was the state of play on 14th October. I was not cognisant of any communication from the Bill team or any Minister, so I checked, and I understand that there has been none. We do not seem to have got very far. I seek guidance and light, on the basis of which we will consider what to do on this matter. At present, there has been no response. I am obliged to move the amendment to discover the current state of play. However, it looks as though I may well have to wait until Third Reading. I beg to move.

Baroness Scotland of Asthal

My Lords, I apologise if the noble Lord did not receive a copy of the letter. I know that a letter was written to the noble Viscount, Lord Colville of Culross. I shall check whether the noble Lord was also sent a copy. If not, I give him a fulsome apology for that neglect. I do not have a copy to hand, so I cannot check, and the noble Viscount, Lord Colville of Culross, is not in his place. Perhaps the noble Lord will accept my abject apology.

Lord Thomas of Gresford

My Lords, it is too early; I am not that efficient, so I may have received it and not read it. But I have checked with the Bill team, and they have no record of my being sent a letter.

Baroness Scotland of Asthal

My Lords, perhaps we should await our joint apology. I shall deal with the amendment.

I reassure the House that we fully respect the independent status of the Parole Board. It has the unique responsibility for determining the early release of prisoners. Therefore it is essential that it can perform its decision-making duties free from political interference. The board itself would be the first to point out that it is allowed to conduct its business without interference. When recently giving evidence to the Home Affairs Committee, the board's chairman, Mr David Hatch, was at pains to stress during his term that the board had never once come under, any pressure of any kind on any of the decisions that we have made; not one". The import of the complaint of the noble Viscount, Lord Colville of Colross, was almost that they should have come under a little more pressure in relation to the direction and it should have been forthcoming.

With Mr Hatch's comments in mind, I turn first to the provision enabling the Home Secretary to set down directions, which is being carried forward from the Criminal Justice Act 1991. As I have already said, this is not about interference, but about accountability. The Home Secretary is responsible for criminal justice policy and is accountable to Parliament for all aspects of that policy. He is also ultimately responsible for the supervision of all offenders on licence and again is answerable to Parliament in respect of their release arrangements. It is therefore wholly reasonable that my right honourable friend the Home Secretary should be able to set down the considerations to be taken into account when determining whether to grant early release and held to account by Parliament if these considerations are felt to be in any way ill advised.

Having said that, that does not give my right honourable friend the Home Secretary unfettered discretion to set down excessive or unreasonable criteria to be met before release can be granted. I must also point out that the board is always fully consulted on the drafting of directions and any amendments it might suggest are always given due consideration. As far as concerns the rules, they have no influence on the determination, as noble Lords will appreciate, of applications for early release. They offer a transparent and fair procedural framework for the Parole Board to operate when it is sitting in a quasi-judicial capacity. Although the rules are drawn up by the Home Office, the Parole Board is fully consulted. In fact, a working party is currently reviewing the existing rules and I can report that the board is represented on that working group and is playing a full and active part.

I hope that I have reassured the noble Lord, Lord Thomas of Gresford, that all is well and that the amendment is not necessary. I do not know whether he now has a copy of the letter that was sent.

Lord Thomas of Gresford

My Lords, indeed, I have a copy of a letter dated 28th October that was directed to the noble Viscount, Lord Colville, that deals with several matters, including the Parole Board rules. It was copied to the noble Baroness, Lady Anelay, who handed it to me, to the noble Lord, Lord Carlile of Berriew, who did not contribute on this topic, to the noble Baroness, Lady Stern, and to the noble Lord, Lord Hylton—but not to me. That is why I accept the apology that was so freely offered earlier. It is important, because it was my point and my experience that I was relying upon.

The Minister may not have been here, but I pointed out—and I do so again—that, in a later Clause, Clause 306 on page 173, there is provision for the making of rules. The section applies to: any power conferred by this Act on the Secretary of State to make an order or rules", or a power conferred …on the Lord Chancellor". Subsection (2) states: The power, unless it is a power to make rules under section 221(5), is exercisable by statutory instrument". Out of 314 clauses, the only time that statutory instruments are not to be utilised for the making of rules is in relation to this part. That is the basis of my complaint. Why on earth should there be this exception for the rules of the Parole Board? I cannot expect the noble Baroness to reply to that now, because I have not tabled an amendment in relation to that particular expression in Clause 306. I shall do so at Third Reading, when, perhaps, we can have a full explanation of why the exception is made.

I made the point in the course of argument. I thought that knocking out subsections (5) and (6) would automatically remove the exception from Clause 306, but it does not. It still remains. At Third Reading, I shall table an amendment, and I imagine that, in the absence of a full and satisfactory explanation, we will seek to divide the House on the issue. We want to know why the exception should be made. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 225 [Persons extradited to the United Kingdom]:

Baroness Scotland of Asthal moved Amendment No. 220D: Page 130, line 14, after "a" insert "designated

On Question, amendment agreed to.

Clause 228 [Power to release prisoners on licence before required to do so]:

Baroness Scotland of Asthal moved Amendments Nos. 220E to 220G:

Page 131, line 24, leave out "a prisoner serving a sentence of intermittent custody" and insert "an intermittent custody prisoner

Page 131, line 28, leave out "a prisoner serving a sentence of intermittent custody" and insert "an intermittent custody prisoner

Page 132, line 7, leave out "Part 1 of the Sex Offenders Act 1997 (c. 51)" and insert "Part 2 of the Sexual Offences Act 2003

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 220GA: Page 132, line 22, leave out subsection (5).

The noble Baroness said: My Lords, this group of amendments deal with foreign national prisoners who make up a rising proportion of the prison population. About 800 foreign national prisoners are deported or otherwise removed each year. Those liable to deportation at the end of the custodial portion of their prison sentences are currently ineligible for the early release arrangements available to other prisoners.

The purpose of these amendments is therefore to introduce an early removal scheme for this group of prisoners. Eligible prisoners will be deported up to a maximum of 135 days early, depending on sentence length. The scheme will save a small number of prison places. But, as importantly, it will provide fairer release and removal arrangements for prisoners who are ineligible for the early release provisions available to other prisoners.

At present prisoners serving sentences of less than four years are automatically released at the half-way point of their sentence. Those liable to removal may be detained under immigration powers until they are removed. In practice, many prisoners are held in Prison Service establishments until they are removed. Prisoners serving determinate sentences of four years or more are considered for early release at the half-way point in their sentence. However, the decision to release is made by the Secretary of State rather than the Parole Board. If not released earlier, prisoners will be released after having served two-thirds of their sentence. If they are liable for removal, they may remain detained under immigration law until they are finally removed from the United Kingdom.

The amendments create two versions of the scheme. The first is set out in Amendments Nos. 220M and 220N, which will apply to prisoners sentenced under the new sentencing arrangements proposed in this Bill. The second version is set out in Amendments Nos. 220 P and 225A, which will apply to those sentenced under the Criminal Justice Act 1991. The latter version will come into force early in 2004. Both versions of the scheme will have the same effect.

The maximum period for early removal will be tapered according to length of sentence. Prisoners serving extended sentences for certain violent and sexual offences will be statutorily excluded, as will sexual offenders, subject to the notification requirements of Part 2 of the Sexual Offences Bill. These will replace the notification requirements set out in the Sexual Offences Act 1997.

Early removal under the scheme will be discretionary. Prisoners who are statutorily eligible will be required to pass a risk assessment. Prisoners serving a sentence of four years or more for a sexual or violent offence, but one which does rot statutorily exclude them for consideration, will be subject to an enhanced risk assessment. Those considered to present an unacceptable risk to public safety in their home countries will not be approved for early removal.

The provisions will also ensure that an offender cannot avoid serving his sentence while he is in the United Kingdom by claiming asylum at the last minute. They will also provide that if the prisoner returns prior to the date that the sentence expires he or she will become liable to be detained again in pursuance of the sentence. The provisions include an affirmative order-making power—I hope that will please the noble Baroness, Lady Anelay—which will enable changes to be made to the requisite period to be served before early removal, so that it can be reduced or increased as appropriate to circumstances prevailing at the time. I beg to move.

Lord Thomas of Gresford

My Lords, these provisions are part of the release on licence provisions. Clause 228 states that, the Secretary of State may, (a) release on licence … a fixed-term prisoner, other than a prisoner serving a sentence of intermittent custody, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period, and (b) release on licence under this section a prisoner serving a sentence of intermittent custody when 135 or less of the required custodial days remain to be served". That is the basic power that Clause 228 provides for release on licence.

Subsections (2), (3) and (4) set out provisions where subsection (l)(a) or (b) would not apply. The provisions include—this appears to be the scheme of it—the situation where a prisoner is subject to a hospital or transfer direction and so forth, and where the sentence was imposed in a case where the prisoner has failed to comply with the curfew requirement of a community order.

I wonder whether noble Lords will give me a moment to confer. A certain amount of discussion is taking place behind me, the purport of which I would not dare to reveal to this House, although I am very much tempted to do so.

Baroness Scotland of Asthal

My Lords, if the noble Lord wishes to be discreet at this point, I am sure we will all be very happy.

Lord Thomas of Gresford

My Lords, I think that I am rather obliged to do so.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 220H: Page 132, line 41, leave out "a person serving a sentence of intermittent custody" and insert "an intermittent custody prisoner

On Question, amendment agreed to.

Clause 231 [Duration of licence]:

Baroness Scotland of Asthal moved Amendment No. 220J: Page 133, line 37, leave out from "where" to "is" in line 38 and insert "an intermittent custody prisoner

On Question, amendment agreed to.

Clause 239 [Additional days for disciplinary offences]:

Baroness Scotland of Asthal moved Amendments Nos. 220K to 220N: Page 138, line 15, after "Chapter" insert— (aa) any period which he must serve before he can be removed from prison under section (Early removal of prisoners liable to removal from United Kingdom)."

After Clause 240, insert the following new clause—

"PERSONS LIABLE TO REMOVAL FROM THE UNITED KINGDOM

For the purposes of this Chapter a person is liable to removal from the United Kingdom if—

1. (a) he is liable to deportation under section 3(5) of the Immigration Act 1971 (c. 77) and has been notified of a decision to make a deportation order against him,
2. (b) he is liable to deportation under section 3(6) of that Act,
3. (c) he has been notified of a decision to refuse him leave to enter the United Kingdom,
4. (d) he is an illegal entrant within the meaning of section 33(1) of that Act, or
5. (e) he is liable to removal under section 10 of the Immigration and Asylum Act 1999 (c. 33)."

After Clause 240, insert the following new clause—

"EARLY REMOVAL OF PRISONERS LIABLE TO REMOVAL FROM UNITED KINGDOM

1. (1) Subject to subsections (2) and (3), where a fixed-term prisoner is liable to removal from the United Kingdom, the Secretary of State may remove him from prison under this section at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period.
2. (2) Subsection (1) does not apply in relation to a prisoner unless—
1. (a) the length of the requisite custodial period is at least 6 weeks, and
903
2. (b) he has served—
1. (i) at least 4 weeks of his sentence, and
2. (ii) at least one-half of the requisite custodial period.
3. (3) Subsection (1) does not apply where—
1. (a) the sentence is imposed under section 209 or 210,
2. (b) the sentence is for an offence under section 1 of the Prisoners (Return to Custody) Act 1995,
3. (c) the prisoner is subject to a hospital order, hospital direction or transfer direction under section 37, 45A or 47 of the Mental Health Act 1983.
4. (d) the prisoner is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003, or
5. (e) in the case of a prisoner to whom a direction under section 222 relates, the interval between the date on which the sentence was passed and the date on which the prisoner will have served the requisite custodial period is less than 14 days.
4. (4) A prisoner removed from prison under this section—
1. (a) is so removed only for the purpose of enabling the Secretary of State to remove him from the United Kingdom under powers conferred by—
1. (i) Schedule 2 or 3 to the Immigration Act 1971 (c. 77), or
2. (ii) section 10 of the Immigration and Asylum Act 1999 (c. 33), and
2. (b) so long as remaining in the United Kingdom, remains liable to be detained in pursuance of his sentence until he has served the requisite custodial period.
5. (5) So long as a prisoner removed from prison under this section remains in the United Kingdom but has not been returned to prison, any duty or power of the Secretary of State under section 226 or 230 is exercisable in relation to him as if he were in prison.
6. (6) The Secretary of State may by order—
1. (a) amend the number of days for the time being specified in subsection (1) or (3)(e),
2. (b) amend the number of weeks for the time being specified in subsection (2)(a) or (b)(i), and
3. (c) amend the fraction for the time being specified in subsection (2)(b)(ii).
7. (7) In this section "the requisite custodial period" has the meaning given by paragraph (a), (b) or (d) of section 226(3)."

After Clause 240, insert the following new clause—

"RE-ENTRY INTO UNITED KINGDOM OF OFFENDER REMOVED FROM PRISON EARLY

1. (1) This section applies in relation to a person who, after being removed from prison under section (Early removal of prisoners liable to removal from United Kingdom), has been removed from the United Kingdom before he has served the requisite custodial period.
2. (2) If a person to whom this section applies enters the United Kingdom at any time before his sentence expiry date, he is liable to be detained in pursuance of his sentence from the time of his entry into the United Kingdom until whichever is the earlier of the following—
1. (a) the end of a period ("the further custodial period") beginning with that time and equal in length to the outstanding custodial period, and
2. (b) his sentence expiry date.
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3. (3) A person who is liable to be detained by virtue of subsection (2) is, if at large, to be taken for the purposes of section 49 of the Prison Act 1952 (c. 52) (persons unlawfully at large) to be unlawfully at large.
4. (4) Subsection (2) does not prevent the further removal from the United Kingdom of a person falling within that subsection.
5. (5) Where, in the case of a person returned to prison by virtue of subsection (2), the further custodial period ends before the sentence expiry date, section 226 has effect in relation to him as if the reference to the requisite custodial period were a reference to the further custodial period.
6. (6) In this section—

further custodial period" has the meaning given by subsection (2)(a); outstanding custodial period", in relation to a person to whom this section applies, means the period beginning with the date of his removal from the United Kingdom and ending with the date on which he would, but for his removal, have served the requisite custodial period; requisite custodial period", has the meaning given by paragraph (a), (b) or (d) of section 226(3); sentence expiry date", in relation to a person to whom this section applies, means the date on which, but for his removal from the United Kingdom, he would have ceased to be subject to a licence.

On Question, amendments agreed to.

Baroness Scotland of Asthal moved Amendment No. 220P: After Clause 240, insert the following new clause—

"PRISONERS LIABLE TO REMOVAL FROM UNITED KINGDOM. MODIFICATIONS OF CRIMINAL JUSTICE ACT 1991

Part 2 of the Criminal Justice Act 1991 (c. 53) (early release of prisoners) shall (until the coming into force of its repeal by this Act) have effect subject to the modifications set out in Schedule (Prisoners liable to removal from UK: modifications of Criminal Justice Act 1991) (which relate to persons liable to removal from the United Kingdom).

The noble Baroness said: My Lords, this is a formal technical amendment. I beg to move.

On Question, amendment agreed to.

Lord Thomas of Gresford

My Lords, before Amendment No. 221 is called, I must say that the noble Lord, Lord Bassam of Brighton, knows of the reservations that were expressed by the noble and learned Lord, Lord Ackner, about the matter. He may think it preferable that we have a debate on it at the beginning of the next Report day, which is next week. There is only a quarter of an hour to go.

Baroness Anelay of St Johns

My Lords, I may be able to help the House. There are always occasions when we find it inconvenient to move business. The House has said that it wants to go to as close to 10 o'clock or thereafter as is appropriate. The noble and learned Lord, Lord Ackner, was made aware of that.

On these Benches, we consulted earlier and said that we were prepared to keep to the pre-arranged agreement, of which the noble and learned Lord, Lord Ackner, was aware, that we would go to 10 o'clock. That is appropriate.

Lord Bassam of Brighton

My Lords, the noble Baroness speaks with great wisdom. I agree with what she says. The noble and learned Lord, Lord Ackner, made it plain before the supper break that he would come back to the issue at Third Reading. He is perfectly entitled to do that. It is our intention to press on until 10 o'clock.

[Amendment No. 221 not moved.]

Clause 247 [Determination of minimum term in relation to mandatory life sentence]:

[Amendments Nos. 222 and 223 not moved.]

Baroness Anelay of St Johns moved Amendment No. 224: Page 142, line 31, at end insert— ( ) Before making an order under subsection (6), the Secretary of State shall consult the Sentencing Guidelines Council.

The noble Baroness said: My Lords, that took me by surprise because I fully expected the noble Lord, Lord Thomas of Gresford, to move Amendments Nos. 222 and 223 on behalf of the noble and learned Lord, Lord Ackner, because they also stand in his name.

Lord Thomas of Gresford

My Lords, I would have been pleased to have done that, but having regard to the communication I received a moment ago, I felt that it was not appropriate to do so.

Baroness Anelay of St Johns

My Lords, I was concerned that the noble Lord, Lord Thomas of Gresford, should be able to move amendments to which he has added his own name.

Amendment No. 224 relates to the order-making power the Government propose to take to alter the arrangements for the determination of the minimum term to be served by murderers as set out in Schedule 19. Under Clause 247(6), the Secretary of State has an unfettered power to amend the schedule by order, subject to the affirmative resolution procedure.

The whole issue of Schedule 19 is subject to great controversy and no doubt at Third Residing we shall return to it with serious and powerful speeches, I am sure., from the noble Lord, Lord Thomas of Gresford, and others on their objections to Schedule 19 as it stands. Noble Lords will be aware that in Committee I put forward a whole series of amendments to try to ameliorate the operation of the schedule, but since part of the package was dismissed by the House, that series could not return. I therefore sought to approach Schedule 19 in a different way.

In Committee, the noble Lord, Lord Borrie, made a powerful point when he remarked that once Parliament had passed Schedule 19, It could then be amended at any point by the Secretary of State; therefore Parliament does not have the control. The noble Lord said that he was not suggesting that Parliament should have that degree of control over the particular differentiations between one type of murder and another, but certainly that the Secretary of State should not".—[Official Report, 14/10/03: col. 864.] In his memorandum on the Bill, the noble and learned Lord the Lord Chief Justice stated at paragraph 35 that: If the Home Secretary were to take legislative authority to set the guidelines himself, this would almost certainly be inconsistent with the law as it has now been developed by the courts. The question that therefore arises is: is it appropriate for him indirectly to do what he cannot do directly?". It is our view that if the Secretary of State's power to amend the schedule is to be retained in the Bill, the Sentencing Guidelines Council ought at least to be involved in the process and in the drawing up of the Secretary of State's proposals before they are put before Parliament in an affirmative order. The amendment would require the Secretary of State to consult the council before making an order that amended what is now set out in Schedule 19.

The Government have said much about how the new Sentencing Guidelines Council is intended to restore public confidence, and earlier this evening the Minister repeated those assurances. The Government have stated that they intend to bring together experience in sentencing from across the criminal justice system and yet, under the Bill, the new council will be excluded completely from the arrangements for determining amendments to the sentencing framework in the most serious crime of all, that of murder.

My right honourable and honourable friends in another place made the point very forcefully that it seems extraordinary that we have a controversial package of sentences in Schedule 19 and, under the same Bill, the Sentencing Guidelines Council is to be established, and yet the Government appear not to have confidence in their own creature, the Sentencing Guidelines Council, to put all the new guidelines for murder through it first.

We sought originally, of course, that the new sentences for murder should go through the SGC. We have had to resile from that position. I said earlier that I do not like resiling—and I do not—but on that occasion I could not get the support of the House. My first preference remains but, alas, it is not to happen and on this occasion I have gone back to a lesser position.

Originally I considered putting my name to the amendment of the noble and learned Lord, Lord Ackner, which seeks to knock out the Secretary of State's power altogether. Looking with embarrassment at the noble Lord, Lord Thomas of Gresford, I must admit that that is the more honourable procedure. However, because I am not able to take my original position again, I have to do what I consider to be almost unacceptable to myself— I am having a hard time today—and say that at the very least the Government are honour bound to put the proposals through the SGC first. I beg to move.

Lord Thomas of Gresford

My Lords, I am very sorry that the noble Baroness, Lady Anelay, feels embarrassed for embarrassing me. I have no doubt that the noble and learned Lord, Lord Ackner, will wish to return at Third Reading to his Amendments Nos. 222 and 223, which we will support. I am grateful to hear an indication of support from the noble Baroness.

We shall come in due course to Amendment No. 227—perhaps next week—which seeks to leave out Schedule 19 altogether. The noble Baroness is not herself satisfied with her amendment—it does not give her what she seeks—and we would be very unhappy if we were to end up with something as anodyne as Amendment No. 224.

However, there are dark forces at work, which I do not fully understand, and we will sort out these issues outside the Chamber, as I was told on a previous occasion—but not in respect of the noble Baroness, Lady Anelay.

The Earl of Listowel

My Lords, I listened with great interest to members of the Sentencing Advisory Panel who visited the House of Lords a month or so ago. What most struck me about that meeting was the sense that those panellists felt that they were being sidelined. I am afraid, from listening to the brief debate today, it appears that the new Sentencing Guidelines Council is already being sidelined. I may have misunderstood the debate, but that is my impression.

Baroness Scotland of Asthal

My Lords, I disassociate myself—as I know would the noble Lord, Lord Dholakia—from the dark forces at work and say to the noble Baroness, Lady Anelay, that virtue will always have its reward.

I was not going to trespass on Amendment No. 223 because it has not been moved, but I have heard what the noble Lord, Lord Thomas of Gresford, has said. Confident in the knowledge that the noble and learned Lord, Lord Ackner, will assiduously read his Hansard, I will say a word or two about Amendment No. 223 so that we can better appreciate the gift that is about to be bestowed on Amendment No. 224.I hope that after I have done that, the noble Lord, Lord Thomas of Gresford, will better appreciate the value and enormity of Amendment No. 224.

Amendment No. 223 would remove the power of the Secretary of State to amend by order the principles for setting the minimum term of those sentenced to mandatory life, as detailed in Schedule 19, which would have been the noble Baroness's preferred option.

Amendment No. 224 places a duty on the Secretary of State to consult with the Sentencing Guidelines Council before amending by order the principles detailed in Schedule 19.

We have provided the power because we cannot foresee all the changing circumstances or social developments which may mean that the principles will require amendment at some stage. We have no current plans for use of the power, but it is intended to deal with changes to details of the schedule rather than its basic tenets.

I understand that noble Lords fear that the order-making power may be used. In particular, if I understood the thrust of the Committee debate and the brief comments made in this short debate this evening, there is a fear that a future Secretary of State may wish to amend Schedule 19 so as to provide less flexibility in individual cases. We intend no such thing. We are very aware that the framework must allow flexibility to deal with the wide range of circumstances giving rise to murder. It has been drafted with that in mind.

As I explained to the House in Committee, the offence of murder is the most serious known to our criminal law, and the public rightly expect the authorities to ensure that the arrangements for sentencing for the offence afford adequate punishment for the guilty and adequate public protection. The order-making power is a logical extension of the framework. As I have also said before, the power is subject to the affirmative resolution procedure. I believe that this House would have no hesitation whatever in rejecting any unacceptable or inappropriate use of the power. The beauty of the affirmative resolution procedure is that you either take it or you reject it. That puts pressure on both sides to behave with propriety and reasonableness or suffer the inevitable consequence.

I now turn to Amendment No. 224, which proposes that the Secretary of State would have a duty to consult the Sentencing Guidelines Council before amending Schedule 19 by order. I say to the noble Earl, Lord Listowel, that we have no intention of sidelining the council; we understand the anxiety that may be expressed by the panel, because all and any change is always unsettling. People always feel unsure until they settle down with the new arrangement. That is totally understandable, even if unjustified.

While, as I have explained, we defend the power of the Secretary of State to amend by order the principles contained within Schedule 19, we recognise the concerns that have been expressed in debate in this House. We hope it will do something to allay those concerns if we accept this amendment. We are grateful for this sensible and helpful amendment and will be more than happy to undertake consultation with the Sentencing Guidelines Council, should amendments to these principles be suggested at a future date. I propose, therefore, that this amendment, tabled by the noble Baroness, should be accepted without further drafting or amendment.

Lord Thomas of Gresford

My Lords, before the wedding bells break out, bearing in mind that the provisions of Schedule 19 double the minimum sentences that are currently the guidelines, will the Minister confirm that if the Sentencing Guidelines Council recommended a reduction of what is infamously, in my view, contained in Schedule 19, to its current level, the Secretary of State would follow the council's advice? In other words, the power to amend the schedule includes a power to reduce the minimum sentences if they are shown not to work.

Baroness Scotland of Asthal

My Lords, the noble Lord will know the import of what he has just said, with his usual smoothness. Noble Lords will know that I am probably too long in the tooth to swallow that one whole. I recite that the Government stand by their current position: we have presented a framework in the Bill that will apply, and the Sentencing Guidelines Council will have the role that I have outlined in excruciating detail in Committee and now at Report stage. I have said what 1 have said, which I do not believe can be misinterpreted, in relation to Amendment No. 224.

Usually we say that we will take amendments away and redraft them, but I am not going to do that. I say to the noble Baroness, without reservation, that she has her reward.

Baroness Anelay of St Johns

My Lords, we had a little bit of darkness from the noble Lord, Lord Thomas of Gresford, but, with the right reverend Prelate in the Chamber, it is a case of let there be light on this occasion. Naturally, I am grateful to the Minister for agreeing to accept the amendment.

I have to disappoint the noble Lord, Lord Thomas, yet again this evening. He tried to discern a measure of support for knocking out the Secretary of State's power. Of course, I have made it clear throughout the evening that that was dependent on the whole package, so I am no longer in a position to do that. That was why I introduced the amendment. The Minister got it absolutely squarely right when she said that an affirmative resolution in this case would be tested by the House. As sure as eggs is eggs, if the Secretary of State decided to increase the sentences set down here, he would find a great alliance in both Houses against such a move unless there were extraordinary circumstances requiring it.

On Question, amendment agreed to.

Lord Bassam of Brighton

My Lords, I beg to move that further consideration on Report be now adjourned.